PER CURIAM: In
this attorney disciplinary matter, the Office of Disciplinary Counsel (ODC) filed
formal charges against respondent, O. Lee Sturkey, alleging misconduct in eight
different criminal matters. Sturkey failed to answer, and he was found to be
in default. After a hearing, both the sub-panel and the full panel of the
Commission on Lawyer Conduct recommended that respondent be sanctioned with: a
nine-month definite suspension; mandatory compliance with a law office
management assistance program as a condition of reinstatement; and payment of
costs of the proceedings. We impose the recommended sanction. However, we
address ODC’s argument on appeal that the Commission erred in allowing certain
evidence to be considered in mitigation without giving ODC the opportunity to
present counter-testimony.

FACTS

Respondent, the part-time public defender
for McCormick, Edgefield, and Saluda counties, had a caseload averaging more
than 700 cases per year. Eight complaints against him by clients or spouses of
clients were received by ODC. Respondent failed to respond to the formal
charges, and he was held in default. The factual allegations regarding the
eight matters, as admitted by virtue of respondent’s default, are as follows:
(1) ODC received a complaint from Client A alleging respondent failed to
adequately represent him in a criminal matter; (2) ODC received a complaint
from Client B alleging respondent failed to adequately communicate with him
regarding a criminal matter and that he failed to appear in court; (3) ODC
received a complaint from Client C alleging respondent failed to pursue his
client’s objectives and failed to adequately communicate with him about his
criminal case; (4) ODC received a complaint from Client D alleging respondent
failed to pursue his objectives in his criminal matter; (5) ODC received a
complaint from Client E alleging respondent failed to provide him with
information and documents he requested relating to his criminal case; (6) ODC
received a complaint from Client F alleging respondent failed to adequately
communicate with him about his criminal case; (7) ODC received a complaint from
Client G alleging respondent failed to diligently pursue his criminal case and
failed to respond to his calls and letters; and (8) ODC received a complaint
from the husband of Client H, alleging respondent engaged in confidential
conversations with Client H in front of law enforcement officers and respondent
failed to provide her with competent and diligent representation. Respondent
failed to: comply with ODC’s initial requests to respond to the complaints of
Client A and Client B; respond to the request for a written response in all
eight matters; and provide additional information requested by ODC, including
client files, in regard to Client A, Client B, Client F, and Client G.

The Hearing

Because
respondent admitted the factual allegations by virtue of his default, a hearing
was held before the sub-panel solely for the purpose of recommending an
appropriate sanction. Despite the fact that respondent only gave ODC notice of
witnesses via telephone two days before the hearing, ODC did not object to the
presentation of respondent’s mitigation witnesses. One of the witnesses was
Ervin Maye, the assistant solicitor in charge of McCormick, Edgefield, and Saluda counties. In addition to testifying favorably about his observations of respondent’s
skills as a trial lawyer and character, Maye began to testify regarding the favorable
disposition of some of the criminal matters against the complainants. ODC
objected to any testimony regarding the underlying criminal matters, arguing
they were deemed admitted by default and any testimony regarding lack of harm
would have no bearing on the case. The sub-panel allowed the testimony,
limited to whether a client was harmed, and denied ODC’s request for a
continuance in order to call the complainants to testify to counter the
information.

After Maye’s testimony regarding the outcome of some of the
matters, ODC renewed its objection to the consideration of the outcome of the
clients’ cases in determining harm because they were not given notice of the
purpose of Maye’s testimony such that they could present counter testimony
regarding harm to clients. The sub-panel ultimately denied the motion, stating
it considered all the matters from the complaint deemed admitted via
respondent’s default.

After
presenting the testimony of another character witness, respondent testified.
Respondent stated he had a large caseload as a public defender, but he could
not explain his failure to respond to ODC’s requests other than being
completely overwhelmed. Over ODC’s objections, respondent also testified
regarding the favorable outcomes of the cases involving Clients B, C, D, E, F,
and H.

After the hearing, the sub-panel found respondent engaged in
misconduct in violation of: Rule 7(a)(1) of the Rules for Lawyer Disciplinary
Enforcement, Rule 413, SCACR (violating a Rule of Professional Conduct); Rule
7(a)(3) (willful failure to comply with a subpoena or knowing failure to
respond to a lawful demand from a disciplinary authority); and Rule 7(a)(5)
(conduct tending to pollute the administration of justice or bringing the legal
profession into disrepute). With regard to the specific matters before the
sub-panel, it found respondent violated the following rules:

(1) Rule 1.4, RPC (failure to communicate with a client) with
regard to Clients B, C, E, F, and G;

The sub-panel considered as aggravating factors: (1) respondent’s
prior disciplinary history and failure to comply with the requirement that he
change the way he ran his office; (2) his pattern of misconduct and multiple
offenses; (3) his failure to respond to or cooperate with ODC; and (4) his
substantial experience practicing law. The sub-panel considered as mitigating
factors the evidence of respondent’s good character and abilities as a trial
lawyer. With regard to the evidence that there was no harm to clients, the sub-panel
stated:

We recognize that client harm is a subjective factor difficult to
measure when clients plead guilty, but we do consider the apparent lack of harm
as a mitigating factor for which we give appropriate weight in our discretion
as a panel. As a result of Respondent’s failure to answer the formal charges,
it is undisputed that Respondent failed to adequately communicate with his
clients in the [Client B], [Client C], [Client E], [Client F], and [Client G]
matters; that he failed to adequately pursue his clients’ objectives in the [Client
C] and [Client D] matters; that he failed to diligently pursue his clients’
cases in the [Client G] and [Client H] matters, and, that he failed to
competently represent [Client H] and revealed confidential information in her
case. The facts that these clients ultimately plead [sic] guilty to lesser
offenses than those with which they were originally charged and that the
solicitor believes these were good results are given slight consideration in
our recommendation, due to the difficulty in measuring harm under such
circumstances.

The sub-panel gave some consideration to respondent’s heavy
caseload and the systematic problems with the public defender system, but it
found respondent still had the obligation to only accept as many cases as he
could ethically handle. The sub-panel noted that, at a minimum, respondent
should have adopted the case and office management systems introduced to him
during his participation in LOMAP pursuant to his 2000 disciplinary sanction.
Finally, the sub-panel noted respondent’s large caseload and the lack of harm
to clients did not excuse his failure to respond to or communicate with his
clients. After considering all of these matters, the sub-panel recommended respondent
be sanctioned with a definite suspension of nine months, required to
participate in a law office management assistance program, and pay the costs of
the proceedings.

Over ODC’s objection that it was error for the sub-panel to
consider Maye’s testimony of a favorable result as evidence of no harm to
clients, the full panel adopted the sub-panel’s report and recommendation. ODC
appeals.

DISCUSSION

Neither ODC nor Sturkey complain about the recommended sanction. Sturkey’s failure to
communicate with his clients, failure to pursue their objectives, and failure
to respond to ODC inquiries and requests to answer or provide documentation
regarding the eight matters are serious offenses. Considering Sturkey’s
failure to adequately communicate with his clients and complete disregard for
the disciplinary process, we agree with the Commission that Sturkey violated
the Rules of Professional Conduct and, thus, there are grounds for discipline
in this case. See Rule
1.1, RPC (competence); Rule 1.2, RPC (failure to pursue client’s objectives and
scope of representation); Rule 1.3, RPC (failure to represent with due
diligence); Rule 1.4, RPC (failure to communicate with a client); and Rule 1.6
(confidentiality); Rule 7(a)(1), RLDE (violating a Rule of Professional
Conduct); Rule 7(a)(3), RLDE (willful failure to comply with a subpoena or
knowing failure to respond to a lawful demand from a disciplinary authority);
and Rule 7(a)(5), RLDE (conduct tending to pollute the administration of
justice or bringing the legal profession into disrepute).

Because of the seriousness of his offenses, we find the Commission’s
recommendation of a nine-month suspension, mandatory compliance with a law
office management assistance program, and payment of costs is appropriate. SeeIn re Strait, 343 S.C. 312, 540 S.E.2d 460 (2000) (sanctioning attorney
to a six-month and one day suspension for: failing to act diligently; failing
to return client phone calls; failing to inform client of dismissal of case;
failing to return client materials; and failing to timely respond to ODC
correspondence); In re Shibley, 337 S.C. 50, 522 S.E.2d 812 (1999)
(sanctioning attorney to a two-year suspension for: failing to represent
client diligently, promptly, and competently; failing to keep client informed
about the status of the case; terminating representation without taking steps
to protect client’s interest; violating a valid court order; and failing to
cooperate with the ODC investigation); In re Matson, 333 S.C. 242, 509
S.E.2d 263 (1998) (sanctioning attorney to a definite suspension for eighteen
months for: neglect of legal matters; failure to communicate with clients;
failure to protect clients’ interests when terminating representation; and
failure to cooperate with ODC).

However, ODC complains that the Commission should not have considered the testimony
regarding the final disposition of the complainants’ cases as evidence of lack
of harm in mitigation without allowing ODC the opportunity to present
counter-evidence. We agree.

Generally,
parties to disciplinary proceedings are required to exchange witness lists
within twenty days of filing the answer. Rule 25(a), RLDE. The parties also
must exchange documents and witness statements to be presented at the hearing.
Rule 25(b)(1), RLDE. Where a party fails to timely disclose witness names or
statements as required by the rules, the sub-panel or hearing officer may
“grant a continuance of the hearing, preclude the party from calling the
witness or introducing the document, or take such other action as may be
appropriate.” Rule 25(g), RLDE.

ODC did
not object to respondent presenting witnesses in mitigation, despite the fact
that he defaulted, failed to cooperate in general, and failed to give
sufficient prior notice of the witnesses. Maye’s mitigating testimony
regarding the ultimate outcome of the complainants’ cases touched on more substantive
matters than the usual mitigation testimony regarding the respondent’s
character and personal situation. Lack of harm, similar to lack of prejudice,
may be considered as mitigating evidence in a disciplinary action. In re
McFarland, 360 S.C. 101, 105, 600 S.E.2d 537, 539 (2004) (considering the
lack of prejudice to the client’s case as a mitigating factor). However,
considering the surprise nature of the lack of harm evidence presented in this
default case, it should have been considered in conjunction with rebuttal
evidence showing actual harm. Despite the Commission’s finding that it did not
give much weight to the lack of harm evidence, we find the Commission abused
its discretion in denying the continuance because it did not allow ODC the
opportunity to obtain and present evidence to rebut the surprise lack of harm
evidence.

We agree with the parties that a nine-month suspension, with
participation in a law office management program and payment of costs, is the
appropriate sanction for respondent. We caution the Commission in the future
to carefully weigh the continuance decision when, as in the present case, the
parties present surprise evidence without prior notice to the obvious
disadvantage of the other party.